Constituents
can have a significant impact on the manner in which parties negotiate in the
context of mediation. On occasion,
constituent influence can be so powerful that it impedes a negotiator’s
willingness to make an offer s/he otherwise considers appropriate and fair.2 This paper explores various interventions a
mediator might consider when dealing with this potential impediment to the
negotiation process.

The term
“constituents” refers to those persons who directly and indirectly influence
the behavior of participants as they negotiate, but who are not physically
present during the mediation session.
By “direct influence” it is meant that the constituent has some degree
of actual settlement authority.
“Indirect influence” is possessed by those constituents who, although they
lack actual settlement authority, impact the negotiation process through the
influence they can exert over participants.

The paper
reflects a bias that all persons with authority or significant suasion should
participate directly in the negotiation process3, but also recognizes
that this level of representation is not always possible as to the issue of
“full authority”, and is rarely possible with respect to the issue of
suasion. The paper does not review
those instances where direct participation may not be appropriate. This can occur when: unique expertise is
called for; it is deemed unwise by the parties due to safety or tactical
concerns; and when the parties are so emotionally charged that direct contact
would most likely lead to a volatile and uncontrollable environment.4 Finally, the paper does not address those
instances where constituents are actually assisting the process from its
inception.

Generally,
the paper attempts to address the following questions:

  • What are some of the interventions (strategies) available
    to mediators when dealing with constituents?

  • How can these interventions be used in
    dealing with various “types” of constituents?

Introduction

This world of relationships is
rich and complex . . . With relationships we give up predictability for
potentials . . . None of us exists independent of our relationships with
others. Different settings and people
evoke some qualities from us and leave others dormant. In each of these relationships, we are
different, new in some way
5

Just as
no man is an island unto himself, it’s probably also safe to say that we all
are influenced in some manner by external sources in just about everything we
do. The decisions a party makes can be
impacted by different types of constituents, who can manifest themselves in a
variety of ways.

It is
difficult (if not impossible) to negotiate effectively in the absence of trust
and at least some degree of rapport between the parties, as well as between the
parties and the mediator. From the
parties’ perspective, critical components of their satisfaction and comfort
level with mediation are a perception
that they have some control over the process and the knowledge that their
voices are being heard.

If it is
true that the outcome of a trial is dependent upon the quality of communication
between the participants and the trier of fact, then it also can be said that
the quality of communication between the parties themselves during mediation is
the bedrock of a meaningful outcome.
Whether we look to the wisdom of Scripture or to modern definitions,
direct interaction between parties in conflict is a central component of
dispute resolution:

“Settle
matters quickly with your adversary who is taking you to court. Do it while you are still with him
on the way . . .”6

“‘Come
now, let us reason together,’ says the Lord.”7

“[Mediation
is the] process by which the participants,
together with the assistance of a neutral person . . . “8

“The
essence of mediation is shared decision making.”9

“Mediation
is a process in which a third person helps the participants . . .
[reach an agreement that is] mutually acceptable . . . that helps
maintain the continuing relationship of the people involved..”10

“Mediation
is a decision-making process in which the parties are assisted by . . . the
mediator . . . [to] reach an outcome to which all can assent.”11

“Parties
[can] agree on an idealized, collaborative style of deliberation in which they
try jointly to solve their problem by adopting the style of Full
Open Truthful Exchange.”12

These
excerpts provide insight into the necessary components of mediation in an
idealized environment. Research
indicates that, at a minimum, there is a correlation between the parties’
direct participation and their level of satisfaction with the mediation
process. Typically however, the
mediator will not be working within the confines of the perfect world,
including those occasions when the participants are influenced by their
constituents. But how can this
imperfect world be effectively addressed by the mediator?

Disclosure
of absent constituents before the mediation can mitigate the negative effect on
trust and rapport but does nothing to address the satisfaction requisites of
the parties themselves. That is, how
can you be heard if the persons who need to listen to your story13
aren’t present?

What
control can you have if you feel as if you are negotiating in a vacuum? If all persons with authority or significant
influence are not present during the mediation, these two “satisfaction
concerns” can be virtually impossible to meet.
If parties feel as if they have no control over the process and that
they are not being heard by the “right” people, the resulting absence of
satisfaction can have a negative impact on all three components of the
“satisfaction triangle”: substantive, procedural and psychological. In the absence of participant satisfaction,
there is no foundation for the negotiations to follow. Moreover, other important components of
meaningful negotiations, trust and rapport, can be shattered if late disclosure
is made. This is particularly
problematic in two critical areas.
First, if the parties do not trust each other, they will not be able to
effectively communicate during the mediation.
This presents a significant impediment to the settlement process, even
though it still may be possible to reach an agreement if they have sufficient
impetus to do so in the absence of a trusting relationship. Second, if the parties do not trust each
other and the mediation impasses, they may never get the matter resolved.

Opportunity
lies within conflict, and any conflict can be diagnosed. That having been said,
many times it is very difficult to arrive at an accurate diagnosis if the
patient isn’t in the hospital. We know
that sometimes it can be done in absentia.
It just requires a different approach, which is the theme of this paper.

The
following personal experience illustrates the difficulty that can be
encountered by mediators and participants by two different types of
constituents (in this case represented by the same person) – The Absent Principal and The Absent Spouse.

The Disaster

During the opening statement the parties and their counsel
appeared to be attentive and more importantly, relaxed. I went through the basics: my role, the
process, confidentiality issues and procedural matters. I suggested that we use a collaborative
approach, one in which we could work on the conflict as if it were a mutual
problem to be solved. All agreed that
they would work together in good faith to reach a resolution, that they had
allocated a full day for the mediation session and that they came with the
requisite authority to settle all outstanding issues related to the law
suit. I also advised the participants
that I had been provided with briefing and expert reports from their counsel
prior to the mediation and that I had read all of the submitted material. The stage seemed to be set for a productive
and rewarding dialogue. We proceeded to openings from the parties.

Mary and John Smith thought it was their dream home. They had scrimped and saved for many years
to buy a house in Rancho Hills Subdivision.
The house was located on Vista Lane, which ran along the edge of an
escarpment at the top of the neighborhood.
Although they initially loved the home and its spectacular view,
mid-Summer rains brought with them a significant amount of erosion at the rear
of the property, about forty feet from the kitchen and den. After two more downpours the Smiths noticed
that the patio was developing cracks.
One month later small structural cracks appeared on the southern wall of
the house. Alarmed, the Smiths retained
a structural engineer, who took soil core samples in the back yard. The
diagnosis: fill-dirt used to prepare the lot had been inadequately
compacted. If the erosion continued,
serious structural damage would result, ultimately making the home
uninhabitable.

In addition to Mary and her counsel, the builder, the
developer, their respective attorneys and insurance adjusters were
present. Mary’s husband John was away
on business and could not attend. Again
however, Mary assured me that she spoke for her family.

At the end of the mediation the Defendants made a generous
proposal that included a cash payment to the Smiths, along with an agreement to
inject concrete under the house, to compact the soil in the back yard, build a
retaining wall and finally, to provide an additional cash allowance for the
Smiths to re-landscape after the other work had been completed and passed all
inspections.

But Mary had a problem.
The Defendants’ final cash offer was approximately 8% below what John
had told her to accept. Because she had
been present throughout the mediation, she was of the opinion that the
settlement package was fair. Moreover,
she was now aware of the many risks associated with litigation, and told me
that she simply did not want to go through a five day trial. Of even greater importance, the litigation
had put a strain on the family and she wanted to put an end to it that evening. There was only one hitch: she and John had
agreed on a different figure, albeit one that was very close to the Defendants’
final offer. She simply could not sign off on an agreement until she first
spoke with John to secure his approval.
Unfortunately, she was unable to contact him over the telephone and we
adjourned without reaching a settlement.

This case eventually settled, but it was no easy task as
it entailed numerous telephonic conferences on an individual and group
basis. From a logistic perspective
alone, mediating is significantly easier when all participants are working
together in the same time frame . . . easier still if they are all in the same
physical location.

What could have been done better: It’s difficult to say because the
wife had told me twice that she had
full authority to settle. More testing
was probably in order, with both open and closed questioning: “Mary, you have
just told me that you speak for your family.
Could you tell me briefly what you mean by that with respect to today’s
mediation?” “I know that your husband
couldn’t attend but that he has given you authority to act on his behalf. One thing however . . . could you tell me if
he placed any limits on your authority, either in terms of dollar amount or
what the defendants are prepared to do to fix the damage?” If the answer had been “yes”, subsequent
questions would have explored Mary’s limits of authority.

Authority”
in the Context of the Mediation Process

In
determining the appropriate intervention(s) to employ with respect to
constituents, the mediator must first be aware of the participants’ authority
to negotiate. Further, s/he should have some understanding of the basic facts
of the conflict and the type(s) of constituents who may be exerting influence –
either directly or indirectly – upon the process. For the purposes of this discussion, there are five major
classifications of authority: 1) a participant has simply overlooked his or her
lack of authority; 2) actual authority is not possible to obtain within the
confines of the mediation session; 3) a participant only has limited authority
to settle; 4) the participant asserts a false claim of no authority to obtain a
tactical advantage14; and 5) even though the participant
appears to have either actual, legal or persuasive authority, his or her
conduct will be influenced by constituent(s).

As to the
issue of actual settlement authority (as opposed to mere suasion), it is
also important

to
discern the relationship between the participant and any constituents whose
assent to settlement will be required. These relationships are generally divided into two broad
categories: bureaucratic/hierarchical and horizontal. Generally, bureaucratic models are “top-down”, such as corporate
structures in the private sector.
Horizontal models are typically characterized by the mediation
participant essentially residing on the same plane as his or her
constituent(s), such as family, fellow church or union members, etc. An understanding of the approval process as
between the participant and his or her constituency can be the difference
between ratification and rejection of an agreement reached during the
mediation.15

Pre-Emptive
Strategies

Pre-mediation
preparation is an important component of the process. Gathering information regarding the nature of the conflict can assist
the mediator in considering possible
approaches to use, and also limit attempts to “litigate” the dispute during
opening statements. Arguably, of even greater importance is the mediator’s
ability to discern information about the participants and their relative
authority prior to commencement of the session.

Given the
effect constituents can have on the mediation process, it is important to
address the issue of authority well before the commencement of the mediation
session. Regardless of the type(s) of
specific intervention(s) employed during the mediation session, the pre-emptive strategies that follow
should be pursued, either individually or in combination. The first method to discern the constituency
issue is to teleconference with the attorneys or parties and/or through the use
of a confirmation letter such as the
following:

[Note:
The letter that follows is still in the “conceptualization” phase and has not
been incorporated into my practice.]

[LETTERHEAD]

[Date – Two Weeks Out]

[Counsel / Parties Name & Address]

[Case
Reference]

Dear Counsel:

I am writing to confirm the mediation of the
referenced matter, which is scheduled to begin at my office at 9:00 a.m., April
11, 2006 (Tuesday).

Enclosed please find an “Agreement to Mediate”,
which covers fee matters, as well as the issue of confidentiality. Your clients will be asked to execute the
Agreement before we begin the mediation session, so I hope that you will feel
free to contact me with any questions that you may have as to its content prior
to April 11th.

As a preliminary matter, I have found it beneficial
to a productive mediation to have the following matters addressed in advance:

Authority to Settle: Your clients should
have full authority to settle any and all issues related to this matter. You
will note that Paragraph 3 of the Agreement specifically addresses this issue.
If persons without such authority are unable to be physically present at the
mediation, they should be available for teleconferencing throughout the day
(and into the evening if the need arises, so please be sure to secure their
cell phone numbers). If those with
actual settlement authority will not be attending for any reason, I’d also like
to be informed as to what ratification processes will be required in relation
to any agreement reached during the mediation session, as well as the nature of
authority those in actual attendance will have. I would also like to have your clients’ permission to share this
information with other parties and/or their counsel. Please advise in your response to this letter if I have such
permission.

Preliminary Information: You are invited to
provide me with any relevant information prior to the mediation. This information will be kept in strict
confidence unless you direct otherwise.
At a minimum, I would appreciate your responses to the following
questions at least 5 days prior to the mediation:

1) What
is your estimate of your client’s best outcome if the case proceeds to trial?

2) What is your estimate of your client’s
worst outcome if the case proceeds to trial?

3)
What is your estimate of your litigation costs from
the time of the mediation forward if you win at trial?

3)
What is your estimate of your litigation costs from
the time of the mediation forward if you lose at trial?

Again, this information
will be kept confidential, so a candid response will be greatly appreciated as
it many times proves to be quite helpful to the negotiation process.

Thank you for your
attention in this instance, as well as for the opportunity to be of
service. I look forward to seeing you
and your clients on April 11th.

Sincerely,

W. Reed Leverton

Second, the nature of the relationship between the
participants and their constituents should be addressed either during the
opening statement if the issue is one of common knowledge, or in separate
session if it is not. Either way, the
mediator should explore ways to keep
the constituents engaged in the process while working with the participants to
explore strategies to address concerns that may be raised by constituents after
the mediation.16 “I know that the claims manager is unable
to attend, and was wondering what we can do today to keep her involved in the
negotiations?”

In addition to the general “pre-emptive” interventions
discussed above that should be attempted in virtually all mediations, there are
a number of specific strategies that can be attempted when dealing with
constituents17.
Among other things, the mediator can attempt one or more of the
following:

Strengths: If the participants possess actual, legal authority to
negotiate, ignoring outside influences can minimize the perception of
constituent importance, which may in turn lessen their influence. Ignoring constituents all together may also
benefit the process from an expediency standpoint, especially in smaller cases
where distributive bargaining occurs and the participants are limited
economically.

Weaknesses: Of immediate concern are ethical considerations,
especially if the absent party is in a position of extreme weakness. In fact, there is authority for the
proposition that in family cases, the mediation should not proceed unless all
necessary and proper parties are present.18 Further, ignoring constituents can lead to a sense of
disengagement by the parties, an obvious impediment to settlement. As a final concern, this is a situation
where many times ignorance is definitely not bliss. Failure to inquire into the nature of the relationship between the
participants and any constituents, as well as issues related to authority, can
lead to impasse.

Strengths: Acknowledging the role of constituents can be an
effective way to begin building rapport between the mediator and the parties
and also demonstrate a degree of deference to the role and importance of the
relationship between those who are present and those who are not. As noted below, if done properly, it can
also mitigate feelings of disengagement by other participants and provide
valuable information to all concerned as to the issue of authority. Finally, some acknowledgment by the mediator
may assist the process in its later stages if the constituent’s influence over
one of the participants comes to bear.
That is, the fact that the mediator acknowledges the constituent early
in the process may help develop rapport between the two later on.

Weaknesses: The risks associated with this approach are similar to
ignoring the constituent all together, except that the simple act of
acknowledgment may reduce feelings of disengagement by the actual
participants. If the method of
acknowledgment by the mediator is in the form of questions to those present as
to their authority to settle, a response from the participant that is
satisfactory to other participants can significantly reduce feelings of
disengagement by letting them know exactly with whom they are dealing. Again however, if an individual who is vital
to the process elects not to be physically present, the feelings of
disengagement may be so strong that it is impossible to carry on.

3)
Engage
the constituent and attempt to keep him or her as involved in the process as
possible:

Strengths: Active telephonic
engagement of these constituents throughout the process is the next best thing
to having them physically present. Depending upon their potential impact on the
process, the level of engagement can ultimately be outcome determinative.

The famous baseball slugger, Sadaharu Oh was once asked
about the various pitchers he had faced during his productive career. He explained that he viewed pitchers not as
adversaries, but rather, as his partners.
This same relationship can evolve between the mediator and a
constituent. Positively engaged in the
process, constituents can provide valuable insight and counsel, which in turn
can lead towards resolution.

Weaknesses: Care should be used in the type of engagement used. Sometimes
fairly aggressive and continual communication is called for. Other times a more passive approach is
best. The type and engagement used will
depend upon the situation. Disaster can
result if the mediator makes an incorrect diagnosis and employs the wrong type
of intervention at an inappropriate level of intensity. Another problem with this strategy is that
it requires the mediator’s absence from some or all of the participants. Parties can become unsettled if the mediator
is absent for an extended period of time.
They need to be told what the mediator is doing and why he is doing
it. But what about the other parties’
concerns about the absence of an important constituent or party? How does the mediator deal this situation?

As with any mediation where it is apparent that the
constituent either has actual authority or has the ability to exert influence
over the participant, others present at the mediation can feel disengaged. “Normalizing”19, or explaining to
the other participants that it’s not unusual for a constituent with authority
to be absent from the actual mediation session, can be an effective means to
minimize feelings of detachment. This
approach can be even more effective if the constituent will be participating
telephonically. How the absence is
normalized depends upon how the issue is raised. If it’s initiated by the mediator, a simple explanation that it’s
not unusual for a party or necessary constituent to be absent may suffice,
especially if s/he will be participating telephonically. Participants’ reactions to the absence are
varied. Sometimes, disclosure of the
absence can invoke the following: “They have always treated this like it’s some
sort of joke. I knew they wouldn’t
show”. The mediator’s possible
response: “So it’s important to you to be able to conduct meaningful
negotiations today?” “What do we need
to do to ensure that those wishes can be met?” If the other parties can give proper assurances that they intend
to participate in the mediation – either in person or telephonically – in good
faith, that may adequately address the concern. If the participant is not convinced, it may be necessary to
adjourn until all necessary parties and constituents can be present (if in fact
it’s possible to ever get everyone under one roof).

4)
Do a
“reality check”. Know the extent the
representatives’ authority, both in terms of quality and quantity:

Strengths: Reality checking is similar to engagement in that it
attempts to keep the participants and their constituents involved in the
process and focused on the issues at hand. While engagement is usually directed
at the constituent, “reality checking” (or hypothesis testing) typically
involves the participant. When the
mediator suspects constituent influence, s/he tests this hypothesis with the
participant in order to assess the need to involve the constituent, and if so,
to consider appropriate interventions.
“You seem to be having difficulty with this issue. Is there anyone else who might be affected
by your decision?” “I know that your
mother helps with the children after school.
Will changing the weekday visits from Tuesdays to Wednesdays be alright
with her?” “Would you like to take a
moment to call her to make sure?”

If the mediator is to be an “agent of reality”20
throughout the process, the dual issue of constituency and authority is a good
place to begin asserting that role.
Used judicially, reality checks demonstrate to the participants that you
are listening, and also tells them: “this issue is important”.

Weaknesses: This method has to be used with caution and tact in that
it can occasionally be perceived as confrontational. Development of trust and rapport between the mediator and
participants is critical to a productive dialogue. If the participant thinks his honesty is being questioned, the
mediation is over.

5)
Empower
the active participants:

Strengths: A central tenet of mediation is empowerment of the participants. The parties have the opportunity to resolve
their dispute on their own terms instead of having a judge or jury do it for
them. For the purposes of this discussion,
empowerment means giving the participants equal powers as to procedural issues.
Sometimes it is done indirectly, by explaining to the “difficult” party or
constituent that their proposed action may invoke a negative response from the
other side. It typically is employed
when one participant announces that s/he must leave prematurely, or when a
constituent is becoming increasingly difficult to reach by telephone. It can be an excellent means to keep the
parties engaged and the mediation on track:
“Bob, I know that you left instructions with your secretary to pull you
out of whatever you were doing when we call, but it seems to be getting more
and more difficult to get you on the phone.
I’m concerned that the other parties are becoming frustrated and was
wondering if you want to proceed or do you want to carry on another day?”

Another type of empowerment occurs when the constituent
proposes an “add-on” later in the session ( a type of “ambush”). If substantive in nature, an additional
requirement can be counter-productive, and occasionally leads to immediate
impasse. “Given the significant
progress we have made, have you considered the impact this will have on the
other party?” “Have you considered what
impact this might have?” “Do you think
they will leave when you convey this additional requirement?”

Weaknesses: Sometimes parties leave mediations simply because they must do so, and
most of the time they leave a representative behind. Telling the departing participant that the other parties may also
leave can be perceived as confrontational. Finally, using a strategy that may
be perceived as “forcing” the soon-to-be constituent to remain could lead to
polarization21.

6)
Look for
assistance from the attorneys or their clients:

Strengths: Sometimes it’s necessary to use representatives (or
parties) to deliver messages during separate sessions, particularly when the
message is substantive in nature. This
is especially helpful in complex mediations where the issue of “leaking”22
is present. If the attorney / party has
direct contact with the other party’s constituent(s), the feeling of engagement
by all concerned can be enhanced. Also,
the attorney or party will bring a different perspective to bear, which may in
turn lead to a collaborative solution.
In particular, significant issues should be directly shared with
participants and constituents alike, as opposed to being delivered by the
mediator. Finally, telephonic communication
between the constituent and the other party can help to develop rapport and
keep the constituent actively engaged in the process.

Weaknesses: This intervention should be used carefully, as it carries
the risk of unpredictability. Just as
the principals are in conflict, the representatives may also have a history of
negative interaction. This strategy
also puts the mediation within the “legal culture”. Abrogation of any of the process to one of the attorneys will
draw the other(s) in as well.
Psychological and economic needs may yield to concerns that are strictly
legal in nature. Personal experience
teaches that attempts to litigate disputes during mediation can do more harm
than good.

7) Put the mediation “on hold” until
everyone with requisite authority can fully participate:

Strengths: As with refusing to mediate (below), this approach places
emphasis on the importance of having everyone’s voice heard. The relative
strengths and weaknesses of this intervention depend upon the time frame
involved. If a party is stuck in traffic
and will be along in 2 hours, a temporary delay will typically be in
order. If the issue is days or weeks,
the circumstances of the conflict itself will dictate the necessity of having
all parties physically present. This
analysis is also appropriate when dealing with constituents who can significantly
influence participant conduct, or may be “sniping” from the sidelines.

Weaknesses: Sometimes the adage “he who hesitates, is lost” can come
to bear. The parties have come to the
mediation to attempt settlement (usually).
Postponement interrupts momentum, and may lead to discouragement. When the time to re-convene arrives, one or
more of the participants may not show up.

8) Refuse
to mediate:

Strengths: If mediation is about giving parties the power to resolve
their conflict on their own terms, what’s the purpose of carrying on if
everyone indispensable to the resolution process are not present and accounted
for? There is probably no better way to
validate this view than by the mediator’s refusal to move forward without 100%
participation of all “concerned”.
There’s also probably no better way to capture the parties’ attention as
to the importance of the process.

Weaknesses: While the imposition of full-participation as a condition precedent to
commencing the mediation is laudable, it many times is also unrealistic. The greatest weakness of this approach is
that the mediator, on his or her own initiative, may foreclose the parties’
only opportunity to settle their dispute outside of court. It is also problematic in that the
mediator assumes the role of judge: deciding who is necessary to the process
and who is not. Also, the
parties may become disheartened, refuse to re-schedule the mediation, and not
attempt meaningful negotiations prior to trial. Permanent suspension of communications between the parties is the
worst case scenario in any mediation.

Specific Applications

The above interventions can be used singly or in
combination depending upon the circumstance.
The remainder of the paper is devoted to a discussion as to how these strategies
may be employed depending upon the nature of the conflict and the various types
of constituents involved.

The Absent Principal: 23 In legal terminology a principal
is alternatively referred to as a “stakeholder”, “necessary and proper party”
or “real party in interest”. Principals
have a direct stake in the outcome of a dispute and their assent to any
agreement is mandatory.

Possible Intervention: Engage the absent Principal in the process. An Absent Principal is not necessarily a
“deal killer”. In fact, many times the
person with actual settlement authority simply cannot be present at the
negotiation table. In such cases it is
critical to have the absent Principal available by telephone at all times and
to keep him/her in the process. Simply
put, s/he must remain engaged in the
mediation as it moves forward (and sometimes backward and
sideways). Even though the negotiations
in the Smith case were finished up in absentia, the principles employed are
essentially the same as in on-going negotiations. My initial telephone conference with the husband went something
like this:

John, this is Reed, the mediator from the other
evening. I’m sorry that you couldn’t be
with us but understand that you had important business out-of-town.

I know that Mary has probably
filled you in on what happened, but I thought it might be helpful if I shared
some of my own observations about what happened. Is that o.k. with you?

First, it was my understanding
from Mary that you wanted to get the matter resolved as fairly and as quickly
as possible, and that neither of you wanted to explore the litigation
alternative. Did I understand your
desires correctly?

It’s also my understanding that we
were unable to reach an agreement during the mediation because the dollar
amount offered by the Defendants was a bit less than you had anticipated. If that’s correct, have you and Mary given
any thought to what it might take to get the case put to bed from your end of
things?

Well,
not really

Well, that’s why I’m calling. First off, I want you to know that Mary did
an excellent job of looking out for your family’s interests during the
negotiation, but something came up during the process that caused her to have some
concerns. I don’t want to know specifics,
but have you, Mary and your attorney
had a chance to discuss the engineering report produced by the
Defendants that said 4 out of the 5 core samples from your back yard appeared
to be “normal”?

We’ve
discussed that briefly, but that’s about it.

I assume that you have considered
what might happen if we are unable to work this out before trial . . .

The goals of this conversation were to: 1) give John
another opinion (without really giving an opinion); 2) bring him into the
process (engage him); 3) let him know that his interests were well represented
by the “tribal member” who actually attended the mediation; 4) make sure his
interests were the same as those expressed by the participant; and 5) make sure
he fully understood the risks that were considered by the participant as the
negotiations progressed.

What could have been done better: I would be reluctant to postpone
the mediation in this instance because of the wife’s assurances that she had
authority to settle. However, the
husband should have been engaged in the process from the beginning. Simply put, principals have too much
authority and suasion to dismiss. Had
John been engaged early on, we could have made arrangements to contact him
later in the day when and if the need arose.

Family Member: Included in this
category are spouses, parents, siblings, children, grandparents and sometimes
even in-laws. In essence, just about
any family member who can have an influence upon the decision-making process is
included in this category. The depth
and breath of this group can also be strongly influenced by culture. By way of example, and with apologies for
painting with a broad brush, my community is approximately 80% Latino (more
specifically, Americans of Mexican descent).
It is not unusual for members of the extended family (e.g., cousins,
uncles and aunts) to have a strong connection with the negotiator. Moreover, many times grandparents are given
great deference in their roles as matriarch / patriarch.

Possible Intervention: The vast
majority of constituents have a shared characteristic: they will ultimately
have to be “answered to” by the participant if an agreement is reached during
mediation. This can be particularly true of family members. The intervention employed will depend in
large part upon the relationship between the participant and the family member
as well as the level of interest that has been expressed by the family member
in the negotiations. If the participant
becomes intransigent during the process, the mediator may wish to inquire as to
whether s/he has a trusted friend or relative who should be consulted, either
privately or with the mediator. If it
is clear that an absent family member has significant influence over the participant,
active engagement is critical. Simply
put, there are times when a family member can either make or break the
settlement, so it is important that communication be initiated as soon as
possible.

The Real Authority: In this
context, the Real Authority means the ultimate decision maker, e.g., a claims
adjuster, who has elected to participate from a remote location. They typically rely on their junior
representative at the mediation to handle the basics, and may even give the
representative some authority prior to the mediation. At some point the representative will have to call the Real
Authority to ask for revised settlement authority.

Possible Intervention: There are
a number of possible responses to a constituent who is playing “bad cop” from a
remote location, including declaration of impasse or suspending the mediation
until s/he agrees to be physically present.
Another possibility is to invite opposing counsel to assist in the
process. The intervention of attorney involvement, though rare, has settled
more than one case in which I have served as mediator.

The Client (and Adjuster) From Hell

It was a wrongful death medical
malpractice case. I had been contacted
by both attorneys in advance and already knew that the liability facts for the
plaintiff were quite favorable but that the doctor was extremely agitated and
had steadfastly refused to settle. In
spite of the best legal and medical advice as to his precarious position, he
simply could not accept responsibility for what had happened.

When I walked into the conference
room to meet the doctor, he did not stand up, would not look at me and did not
shake my hand when mine was offered.
Without looking at me he said: “This is a [expletive deleted] waste of
time”. I took a gamble. I pulled a chair around, sat directly in
front of him, our knees about a foot apart, and replied: “Well Doctor, why
don’t you just tell me why it’s a [expletive deleted] waste of time”. I don’t like to beat people up nor do I like
to use inappropriate language. In this
case however, it worked. The mediation
proceeded in a much gentler manner than it had begun and three hours later, the
doctor consented to settle. His limits
of liability were only $100,000, so I assumed we had it all wrapped up. I assumed wrong.

The defense attorney came into the
room just after he had spoken with the adjuster, who had decided to participate
sporadically by phone, and told me: “You need to call Jan. She refuses to tender the policy limits”. “I can’t believe it”, I thought. I phoned the adjuster to fill her in on
where we were and the emotional toll suffered by her insured to get there. Her response was to offer $50,000, while at
the same time telling me about the plaintiff’s age at the time he died, his
“morbidity factors”, blah, blah, blah.
By the way, she agreed with the doctor’s attorney that there was no
dispute on the issue of liability, and was of the opinion that the probability
of losing at trial was at least 90%.

I had stood up to the doctor, so I
figured I could stand up to Jan. I
figured wrong. “If I understand correctly”, I asked, “you want to negotiate
the value of a human life and you want to suggest that with liability not in
dispute, the life we’re talking about is worth somewhere under $100,000.” “You got it” was her immediate reply.

I was disheartened and returned to
the Plaintiff’s room to deliver the bad news.
I was surprised by the reaction I was to encounter: “No problem,” responded the plaintiff’s attorney. “I’ll send Jan a bad-faith letter tomorrow
and let her know she is negligently exposing her doctor to a judgment in excess
of the policy limits.”

He sent the letter the next
day. Jan agreed to tender the full
policy limits within a week. It took
the attorney’s cool head to step back, look at the case in its entirety, and
take the appropriate action.24

What could have been done better: The fact that the case settled
was dumb luck. A softer engagement with
the adjuster should have been used. I chose a strategy that was too hard, too
fast . . . especially given her relative lack of involvement throughout the
day. Alternatively, the authority issue should have been explored in greater
detail before the mediation began. Use
of highly aggressive forms of engagement should be avoided, if possible. Further, the mediator should have a pretty
good idea of how the recipient will react if this somewhat confrontational
approach is used. (By the way, the fact
that the Doctor reacted positively to my initial comments was also dumb luck. I’d like to say that I have good instincts
most of the time. Fact is, I hadn’t
known him long enough for my instincts to “kick in”).

The Walker: Walkers leave the mediation prematurely and some have an
uncanny knack of doing so at just the wrong time. Sometimes the necessity to leave early is “legitimate”. Other times however, the idea is to be
disruptive and use their departure to pressure the remaining participants. “I have a plane to catch in two hours. Bob is going stay behind, but he has my cell
phone. I’ll be available for the next
hour but after that it will be tough to reach me for the next couple of
weeks.” The Walker then looks at his
junior colleague in the presence of the mediator and says: “Bob, call me if
they get reasonable.”

Possible Intervention: Empower the remaining participants. Tell the Walker: “I understand that you have
a flight to catch, but please understand that if you leave, I’m going to have
to give everyone else the same option.
We seem to be making progress and I’d hate to see this fall apart when
we appear to be getting closer to settlement.
Is there any way you could arrange for a later flight (always let folks
save face, if possible) or catch one
tomorrow morning?” Sometimes they
stay. Sometimes they leave, which
leaves it up to the remaining participants as to whether they should
proceed.

The Ratifier(s): Ratifiers are comprised of governing bodies. In the private sector, they typically are
boards of directors. In the public
sector, they are usually the legislative branch of the governmental entity that
is a party to the negotiations. They can also be affiliated with the negotiator
horizontally. For a variety of reasons,
they simply cannot physically attend and participate in the mediation session.

Possible Intervention: The representative’s position within the
organization may provide some indication as to the level of suasion s/he will
have with the ratifiers. In addition to knowing where the representative stands
within the hierarchy, it can also be helpful to know who will be handling any proposed
agreement and how it will be presented. “If a tentative agreement is reached
today, who will present it to the Board?”
“Generally, can you provide some idea of the success rate of board
ratification when agreements have reached during similar mediations?”

The Undisclosed Principal (a.k.a. The Bankroller): Is the party at the table the
real principal, or is he nothing more than a straw man? A Bankroller is anyone who has a stake in
the outcome but wishes to remain anonymous.
My experience with Bankrollers has been in cases dealing with
grandparent access, which is a source of considerable litigation in the United
States.25 Typically the
grandparent(s) fund the litigation
costs of a party with legal standing (son, daughter, former son or daughter-in-law)
in an attempt to secure future visitation rights with their grandchildren,
albeit through agreement with their straw person.

Possible Intervention: Sometimes the mediator will be made aware of the
Bankroller’s existence, typically by an opposing party. Many times Bankrollers have chosen to be
anonymous for compelling reasons so attempts at direct contact may do more harm
than good. However, some form of
indirect engagement may be helpful. “How do you think the proposed visitation
schedule will be received by other family members?” A more aggressive approach:
“One of the benefits of mediation is confidentiality. Is everyone from your end comfortable with a public trial and its
attendant risks?”

The Third-Party Stakeholder – Stakeholders (Lien Holders) are
constituents who have an interest in the outcome of the mediation, even though
they are not “real parties in interest”.
In personal injury cases, they typically are persons or entities who
have subrogation claims against any settlement proceeds received by the
plaintiff. In cases where unpaid
medical bills are significant, third-party claimants’ participation in the
process can be critical to the ultimate outcome, especially if liability is in
dispute as between the plaintiff and defendant. In those cases, the Stakeholder’s willingness to discount the
claim can be the difference between settlement and impasse.

Possible Intervention: Lien holders are similar to parties in that their
assent will be necessary to any agreement reached if the settlement amount will
require a discount of their subrogation claim.
Since their ability to recover may be predicated upon the strength of
the plaintiff’s claim, they need to be engaged
in the process from it’s inception. The more information they have, the easier
it will be for them to consider the possibility of a discount if needed. This is another situation where opposing
counsel can be of invaluable assistance. If the liability facts for the
plaintiff are weak, defense counsel bring significant credibility to bear with
the Third-Party Stakeholder. “I am of
the opinion that this is a case my client will win at trial, flat out. However, because of the significant injuries
sustained by the plaintiff, the litigation costs and the risk that we lose this
case 1 out of 10 times, my client has authorized a discounted settlement amount
. . . but it won’t settle out of court without your company’s
participation. As you know Ms. Smith,
if my client prevails at trial, you get nothing.”

The Higher Authority: Spirituality can have a powerful impact on the
mediation process. The primary ways it
manifests is through: 1) direct intervention (“God is telling me to . . .”);
and/or 2) indirect intervention through consultations with a spiritual
advisor. On a secular level26,
the Higher Authority is typically represented by a third-party decision maker
waiting in the wings, e.g., judge, jury, arbitrator, etc.

Possible Intervention: This is a dangerous area. Values are non-negotiable, so interventions
such as reality-checking should be avoided as they could appear to be
confrontational. Experience teaches
that the first reaction should be to acknowledge the issue and move on (or
engage as necessary): “I know that your faith makes the divorce process more
painful than for most folks but you’re not alone. I’ve always thought that’s why Paul tells us that nothing can
separate us from the love of God.” Another caveat: The mediator should be
absolutely sure it’s appropriate to use this approach, and should never use it
unless it’s heartfelt. I have only
taken this direction once, and only because the party was highly conflicted
regarding her faith. Although
faith-based mediation is a sub-speciality within the dispute resolution field,
it should typically be avoided in the absence of training on the part of the
mediator and an understanding by the parties that the mediation will be
pastoral in nature.

Spiritual advisors can be problematic, especially when
they wield great influence. Again,

some type of acknowledgment may be in order, if for no
other reason than to begin developing rapport: “Pastor, I know that this is a
difficult time for Bob, and I also know that he greatly values your
counsel. Would it be alright for us to
call you later on should the need arise?” A second potential difficulty with
spiritual advisors is a focus on what is morally right or wrong, as opposed to
legal principles. “Reverend, I know
that you believe Jane should be
compensated because she fell at Wal-Mart.
While that may seem to be the right way to approach this case,
unfortunately, we are constrained by controlling legal principles. Have you had the opportunity to visit with
Jane’s attorney about what the law requires in order for her to win at trial?”

When dealing with parties or their advisors on spiritual
matters, engaging in theological debate can lead to disastrous results. Understanding and acknowledging spiritual
concerns is one thing; attempting to negotiate issues of faith is quite
another.

The Phantom: The Phantom is not a real person. While the mediator is caucusing with other
parties, the negotiator supposedly makes a call to the Phantom, who is the
imaginary “bad cop”. When the mediator
returns, s/he is informed by the party that “Uncle Bob” has been consulted and
has stated that there is very little room left to move. I have seen Phantoms appear in several
wrongful death cases where some of the heirs are absent from the
negotiations. On at least two
occasions, it was learned after the mediation that the absent relative had not
been consulted at all, and that the family members physically present had
already been given full settlement authority by their siblings.

Possible Intervention: There are a number of possible interventions
available when participants are receiving advice – either real or contrived –
from a constituent. If the mediator
suspects Phantom involvement, the best option is to attempt a reality
check. This is another difficult area
because the mediator is, in essence, questioning the participant’s integrity. It should not be used unless the Phantom’s
“advice” is becoming an impediment to the process. “Jane, you have told me that you’ve been in contact with your
Uncle Bob throughout the day. Now that
the progress of the mediation is starting to slow from your end, I also hear
you telling me that your Uncle is having a significant influence on the
negotiations. At times like these I
have found that it sometimes helps for absent participants to have a chance to
visit with the mediator. I was wondering, would it be alright for me to get
your Uncle on the phone, with you present of course, so I can personally visit
with him regarding his concerns?” If
“Uncle Bob” doesn’t exist, the participant may side-step his involvement from
this point on. If there really is an
Uncle Bob out there, the mediator may be provided with the opportunity to
engage him in the process.

Conclusion

Constituent influence can play a significant role in any
mediation. Sometimes the influence is

de minimus; while other times it is outcome determinative. Many times the suasion exerted participants
is somewhere in between the two extremes, and can be either direct or
indirect. Evaluation of the
constituent’s role and implementation of the appropriate intervention may not
always lead to settlement, but it can have a positive impact on the
participants’ satisfaction with the process.
Even in the absence of an agreement at the end of the mediation, a
feeling of satisfaction among the participants can (and many times does) set
the stage for productive post-mediation discussions.

Reed Leverton is a licensed Texas attorney, former district judge and
full-time mediator. He has mediated
over 750 civil matters (as of April, 2006), and specializes in personal injury,
family law, DTPA, labor & employment, professional negligence, contract
& business, real estate and mass torts.
He is certified as an Advanced Mediator by the Association of
Attorney Mediators and Distinguished Mediator by the Texas Mediator
Credentialing Association. He graduated from the University of Texas School of
Law in 1989 and is presently a part-time LL.M. student in dispute resolution at
Pepperdine University School of Law – Straus Institute for Dispute Resolution.

BIBLIOGRAPHY

Boulle, Laurence. 2001. Mediation – Shills and
Techniques
. Chatswood, Australia: Butterworths

Comité des organismes accréditeurs en médiation familale.
(July, 1999). “(A Guide to) Family Mediation Standards of Practice.” 14.

Emerick-Cayton, Tim. 1993. Divorcing With Dignity:
Mediation – The Sensible Alternative
. Louisville, Ky.: John Knox Press.

Folberg, J. & A. Taylor. 1984. Mediation: A
Comprehensive Guide to Resolving Conflict without Litigation
.

Haynes, John M. 1994. The Fundamentals of Family
Mediation
. Albany, New York: State University of New York Press.

Lang, Michael D. and Alison Taylor. 2000. The Making of
a Mediator: Developing Artistry in Practice
. San Francisco: Jossey-Bass.

Moore, Christopher W. 2003. The Mediation Process:
Practical Strategies for Resolving Conflict
. 3rd ed. San
Francisco: Jossey-Bass.

Raiffa, Howard, John Richardson & David Metcalfe.
2002. Negotiation Analysis: The Science and Art of Collaborative Decision
Making
. Cambridge, Mass.: Harvard University Press.

Riskin, Leonard L. 1991. “The Represented Client in a
Settlement Conference: The Lessons of G. Heilman Brewing Co. v. Joseph Oat
Corp.” Washington University Law Quarterly 69: 1059-1105.

Rubin, Jeffrey & Frank E.A. Sander. 1988. “When Should
We Use Agents? Direct vs. Representative Negotiation.” Negotiation Journal, 4:
395-400.

Schecter, S. & J. Edelson. June, 1999. “Effective
Intervention in Domestic Violence & Child Maltreatment Cases: Guidelines
for Policy and Practice.” National Council of Juvenile and Family Court Judges
Family Violence Department.

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, (2000).

Ury, William. 1991. Getting Past No: Dealing With
Difficult People
. New York: Bantam Books.

Wade, John. (April, 2003). “Bargaining in the Shadow of
the Tribe and Limited Authority to Settle.” Bond Dispute Resolution News 14: 4-26.

Weinstein, Rebecca Jane. 2001. Mediation in the
Workplace: A Guide for Training, Practice, and Administration
. Westport,
Connecticut: Quorum Books.

2 C.
Moore, The Mediation Process: Practical Strategies for Resolving Conflict,
313 (3rd ed. 2003).

3 Although the paper reflects
this bias, personal experience teaches that there are occasions where the
parties’ interests are better served by agents negotiating on their behalf,
even when the principals are otherwise able to be physically present. See e.g., S. Schecter and J. Edelson,
National Council of Juvenile and Family Court Judges Family Violence
Department, Effective Intervention in Domestic Violence & Child
Maltreatment Cases: Guidelines for Policy and Practice
(June, 1999);
Riskin, The Represented Client in a Settlement Conference: The Lessons of G.
Heilman Brewing Co. v. Joseph Oat Corp.
69 Wash.U.L.Q. 1059 (1991).

4 Rubin and Sander, When
Should We Use Agents? Direct vs. Representative Negotiation
, 4 Negot.J.,
395-400 (1988).

5 M.
Lang and A. Taylor, The Making of a Mediator: Developing Artistry in
Practice
158 (2000), quoting, M. Wheatley, Leadership and the New
Science: Learning About Organizations from an Orderly Universe
(1993).

6 Matthew
5:25 (New International Version) (Emphasis
added).

7 Isaiah
1:18 (New International Version) (Emphasis
added).

8 J.
Folberg and A. Taylor, Mediation: A Comprehensive guide to Resolving
Conflict without Litigation
7 (1984)
(Emphasis added).

9 T.
Emerick-Cayton, Divorcing With Dignity – Mediation: The Sensible Alternative
28 (1993) (Emphasis original).

10 J.
Haynes, Fundamentals of Family Mediation 1 (1994) (Emphasis added).

11 L.
Boulle, Mediation: Principles, Process, Practice 1 (1996) (Emphasis
added).

12 H. Raiffa, J. Richardson and D.
Metcalfe, Negotiation Analysis: The Science and Art of Collaborative
Decision Making
86 (2002) (Emphasis
added).

13 R. J. Weinstein, Mediation in
the Workplace: A Guide for Training, Practice and Administration
64 (2001).
Direct
communication between parties in conflict can be the difference between
resolution and impasse. The parties
have “stories” to tell and they want their stories listened to by other
participants. For an excellent
discussion on the concept of shared “stories” (conversations) see generally:
D. Stone, B. Patton and S. Heen, Difficult Conversations: How to Discuss
What Matters Most
(1999).

14 L. Boulle, supra note
11, at 25-27.

15 C. Moore, supra note 1,
at 438-41.

16 L. Boulle, supra note
10, at 235-36.

17 See generally, Wade, Bargaining
in the Shadow of the Tribe and Limited Authority to Settle
, 14 Bond Dispute
Resolution News, (April, 2003) 4-26.

18 Comité
des organismes accréditeurs en médiation familale (Quebec, Canada), (A Guide
to) Family Mediation Standards and Practice
14 (July, 1999).

19 J. Wade, supra note 16
at 13-14; Haynes, The Fundamentals of Family Mediation (1994) 9-10.

20 C. Moore, supra note 1,
at 19.

21 Used in this context, polarization
refers to a climate of extreme positions (entrenchment) that will probably lead
to trial. When faced with impasse, the
mediator should attempt to leave the parties as satisfied with the process as
possible. This in turn will make it
easier for the participants to engage in post-mediation negotiations.

22 “Leaking”
refers to situations where a mediator shares confidential information,
typically inadvertently.

23 Participants and their constituents
are real people with real concerns. Use
of terms such as “The Absent Principal” are for generalization purposes only,
not to dehumanize.

24 W. Ury, Getting Past No –
Negotiating Your Way From Confrontation to Cooperation
37-51 (1993).

25 See e.g., Troxel v.
Granville
, 530 U.S. 57, 120 S.Ct. 2054 (2000).

26 Judges and juries are more
appropriately addressed elsewhere. They
typically emerge in mediation in response to the question: “Have you considered
the consequences of not reaching settlement today?” Although they can exert great indirect influence on the
participants, about the only thing a mediator can do is make the parties aware
of their existence, and also inform the participants of the arbitrary and
sometimes unpredictable nature of judicial process. “On the other hand, mediation gives you the opportunity to
resolve this matter on your own terms, as opposed to having a decision forced
upon you by another party who doesn’t know you and who will know a lot less
about this matter than you.”

                        author

Reed Leverton

<B>Reed Leverton </B> is an Attorney-Mediator from El Paso, Texas; B.A. - Wake Forest University; J.D. – The University of Texas School of Law; LL.M. student (part-time), Pepperdine University School of Law – Straus Institute for Dispute Resolution MORE >

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